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"The crime of rape and justice for victims" by Baroness Vivien Stern CBE

The following speech was delivered by Baroness Stern at the third Crown Prosecution Service Annual Lecture on 21 October 2010.

This is only the third Crown Prosecution Service lecture. The first was given by the then Director of Public Prosecutions, now Lord Macdonald of River Glaven and a most warmly welcomed recent arrival in the House of Lords.

The second, a most admired lecture which I remember well, was given by the current DPP, Keir Starmer. So it is indeed an honour for someone who is not, nor ever has been, nor ever will be a Director of Public Prosecutions, someone who is not even a lawyer, to be standing before you tonight.

I am most grateful to Keir Starmer for asking me to deliver this lecture. The reason he asked me is that just over a year ago I was invited by the Government to carry out a review of how rape complainants are treated by public authorities. That work gave me many new experiences and some insights. It forced me to think more deeply about what we mean by justice. That is what I am going to reflect on this evening.

May I begin by sharing with you some of the experiences and perceptions I had which provide a context for my later remarks. My work in preparing the report brought me into contact with some remarkable people. I met some young women who work to protect street prostitutes from violent assault. Two specialist projects, one in Liverpool and one in Bristol, do this work. The staff go out in pairs and get to know the women working on the street. They carry free condoms and free needles. They also encourage the prostitutes to report to the authorities when they have been attacked, abused and raped by men paying for their services.

It is not an easy thing for women working in street prostitution to report anything to the authorities. But it happens. And a number of men have been convicted for assaulting and raping women working on the streets. In one recent case, according to the BBC report, the prosecution told the court that the defendant would pick up the women and take them to his home. There he had transformed a bedroom into a "torture chamber". He was convicted.

In the course of my review I met many judges. One in particular I remember who was going to great lengths to get help for a street prostitute addicted to heroin so that she would be able to give evidence in court against a man whom she alleged had raped her.

And this leads me directly to the first of the thoughts about justice that I want to put before you this evening. Obviously, justice cannot be reduced to a simple definition such as 'I have got justice if you, who harmed me have got punished'. It is much more than that. The work being done with prostitutes is necessary work and sad work but it is also to our great credit that we have a justice system in this country that puts some of its resources and its energy into ensuring there is no impunity for those who inflict violence and gross cruelty on people who are poor, powerless, subject to public disapproval and on the margins of society.

I recollect the words of Lord Brodie in the High Court in Edinburgh in February this year when sentencing a man for violent assaults and rapes on two prostitutes in Glasgow. One victim was hit and slapped, dragged by the hair, thrown onto a pile of bricks and stones and had gravel forced into her mouth. He said "Both women accepted they were working as prostitutes at the relevant time, but that is no way a factor which reduces the gravity of the offences. Prostitutes are entitled to the protection of the law, just as everyone else."

So justice is also about equality and equal access. Not only the articulate, the respectable, the people who make good witnesses in court, the people who it might be said are more deserving, should get the protection of the law. Everyone should have that chance.

My thoughts about justice were also broadened in the course of my review by meeting many police officers who were extraordinarily dedicated to dealing with rape cases. They were patient, non-judgemental, thoughtful and understanding about how a victim would feel and behave and struggled as best they could to combine what was best for a distressed victim with the need to get the earliest and best possible evidence so as to bring charges and take the alleged perpetrator to court.

And the prosecutors too. The specialist prosecutors dealing with rape whom I met were using all their skills, fiercely determined to make the raw material of this particularly invasive and undermining crime and the many complex, understandably confused, sad accounts of rape put before them into cases that could go before a court and convince a jury.

And let me make another comment about justice. These police officers and prosecutors were 'doing justice' in a very broad sense not just because they were working in the justice system but by the way they treated the witnesses, the way they tried to take the case into the system, the way they recognised the victim as a human being who had been harmed and responded to that harm whether or not they were going to be able eventually to take the case to court and see a perpetrator punished.

The treatment is part of justice. And the same can be said of the judges. The specialist trained judges whom I met were dedicated, knowledgeable, very protective of the witnesses in court, very patient.

So I am grateful to all those who helped me, especially the excellent staff who were seconded to the review from the Government Equalities Office, to all those who gave me their time, their ideas and thoughts and sometimes their accounts of most personal, shaming and degrading experiences which they were prepared to share with me.

I still remember the young woman from Cambridgeshire who came to see me. She had alleged she had been raped. She was able to provide some evidence to the police.
After action was taken under the Human Rights Act she eventually received payment in an out of court settlement from Cambridgeshire police for deficiencies in their record keeping and their failure to investigate the matter expeditiously.

I also discovered the problems faced by men who have been raped who find it very difficult to seek help, to accept what has happened to them and who feel marginalised and angry that they are usually left out of the policy discussions about it.

I learnt a lot from the review too about campaigning to right injustice. I am grateful to the many people I talked to who had made it a cause to get rape taken seriously, had fought passionately over many years to get changes in law and practice. These are people and organisations who feel there is an injustice at the heart of the way rape is seen and dealt with. They have been very successful in getting reform and their determination, energy and skill at campaigning should be a model to others.

I said in my report that rape is unique and indeed it is. It puts demands on the criminal justice system that stretch it to its limits (and I met some people who would have liked to push it beyond its limits). Some large questions open up. I found that there was much talk for example, of a conviction rate for rape of 6 per cent. Not a figure that was easy to put into perspective or get to grips with since for no other violent crime was there a figure available that described as a conviction rate the proportion of reports initially recorded by the police for an offence that ended up with a conviction for that offence.

The figure was also unique in that it did not include as convictions those charged with rape and other offences who were eventually convicted for other offences, even if these were convictions for other sexual or violent offences. The prevalence of that 6 per cent figure in public discourse made it clear there were important questions about how rape was dealt with that needed an answer and strong feelings that needed a response.

I also learnt that the jury system was not held in such high regard in this field as it is generally held in discussions about the justice system. I am familiar with the view to be found for example in Lord Justice Auld's Review of the Criminal Court System:

"The jury is often described as 'the jewel in the Crown' or 'the corner-stone' of the British criminal justice system. It is a hallowed institution which, because of its ancient origin and involvement of 12 randomly selected lay people in the criminal process, commands much public confidence... De Tocqueville memorably described it as 'a peerless teacher of citizenship'."

That view was not widely held amongst some of those who campaign about rape. I discovered a view that juries were swayed by myths about rape and prejudiced against women.

So I had a lot to grapple with, to understand, and in the end to reach some conclusions about.

I was also confronted with a very strong and convincing voice from the victims of this particularly destructive, invasive, and humiliating form of violence. The way they saw their experience, their response to the way it was dealt with, their view of what would restore and heal them was very powerful and very illuminating for me.

I discovered how deep-seated are some views about rape, views not borne out by facts or rooted in principles of equality and sexual autonomy. So I encountered the theme of false allegations of rape and a view that many allegations are false, concocted out of malice and a desire to ruin the reputation of another person. I was also surprised to see how often a case of a court convicting a woman for a false allegation was reported in the press and to see how heavy the sentences were in cases where there seemed from the reports to be mental disturbance at the very least on the part of the false accuser.

How many false allegations are made is a matter of complete conjecture. There is no agreed definition and no reliable information. I recommended some research be done and I hope that recommendation will be accepted.

Out of all that I reached certain conclusions which I shall deal with only briefly because the conclusions are there to read. I want to leave some time for the deeper questions which I realised were there beneath the surface and with which I was not able to deal in the time available for the Review.

So I concluded that the approach we had developed in England and Wales over the past ten years, the approach of specialisation, was the right one. Rape cases are too complicated normally to be left to generalists. The approach, so painstakingly put in place by many people in this room tonight - the specialist police units, the specialist prosecutors, the trained judges, the Sexual Assault Referral Centres, at their best a model for the world - are the right way to develop a system so that rape is properly dealt with and justice is done.

Although of course there are mistakes and failures the police and prosecutors usually do well with the cases that go through the system. And we know from the excellent work done by Professor Cheryl Thomas on juries and their decisions that juries convict more often in rape cases than in some serious offences where the legal questions are similar to rape, such as attempted murder for instance, and where what needs to be decided beyond reasonable doubt is what was the state of mind of the participants.

I concluded that the approach by the police needed to be more strategic and intelligence-based so that the terrible mistakes made in some recent cases, for example by the Metropolitan police in the cases of Kirk Reid and John Worboys and others in other forces, were not repeated.

I concluded that more needed to be done than to wait for people to report. Vulnerable people, young people from care or from difficult homes were being exploited and they needed to be protected which called for much more working together. And I concluded that a too narrow preoccupation with convictions above all was not adequate to protect people from sexual violence or to develop a strategic approach to evaluating the information coming in to the police and other agencies and develop a response to it.

I therefore recommended that the next thematic inspection by Her Majesty's Inspector of Constabulary should take a quite different approach and should look at victim satisfaction, the presence of local arrangements so that the particularly vulnerable who report rape are helped and are linked in to other agencies, and whether good practice in the collection of intelligence material is in place. It seems that this recommendation has been accepted.

We recommended the collection and publication of statistics that can be understood and I am optimistic that there will soon be some changes there. And there is a promise of a response from the government in 2011.

However, I did not find a satisfactory way of dealing with the belief, a belief that came to me from victims, those who work with them and scholars who work in the field, that the criminal justice system as it is currently designed does not deliver an adequate response to rape.

It does not provide what victims feel they ought to have and how they feel they should be responded to considering what has happened to them. There is a mismatch and a failure somewhere, perhaps well expressed in the description of the book of a most eminent scholar on these matters, Professor Jennifer Temkin: "in the new millennium the legal process still fails to provide an adequate response to sexual violation and abuse."

I heard very often the complaint that defendants have their lawyers and victims do not. The conventional answer to that is of course 'You haven't understood - you, the victim, are not opposing the defendant. The state is opposing the defendant and you are helping the state by giving your evidence. That is how it is in our system'.

IS that good enough I wonder? Can there be another way of looking at this?

In the short time we had for the Review we did no more than glance at this. We looked at Ireland and at France. In both systems victims can be represented by a lawyer for parts of the proceedings. It was suggested by some that the problem of victims feeling great unfairness because no-one in the courtroom represented them is because our justice system is adversarial. An inquisitorial system deals better with rape, it was said. We don't know if that is true but we do know that someone is trying to find out. The New Zealand Law Commission is funding New Zealand academics to study rape trials in Netherlands, Denmark, Sweden, Germany and Austria. The findings are not yet public but the researchers have concluded their preliminary findings suggest the inquisitorial approach has certain advantages.

For example, they note that the judge is in control of all aspects of the case once charges are laid, can direct further investigations and decide what witnesses are to be heard. This, they conclude, can give the proceedings a more neutral and balanced flavour and reduces the extent to which the subsequent questions of witnesses by prosecution or defence are confrontational and aggressive.

They say that there is much more opportunity for defendants, and potentially victims, to participate in the process and to feel involved. But they urge caution. There are also flaws in the inquisitorial system.

I remain, I must say, doubtful about the possibility of mixing systems of justice that are based on such different legal philosophies. But I am sure we should keep in touch with this work as it emerges to see what we can learn.

Maybe another answer is to take more seriously the state's obligations towards victims of violence and reflect on what that might entail.

I have long held the view that we should regard crimes of violence in the way we regard human rights violations - as acts that call for redress from the state. I was fortunate that the distinguished legal scholar Liora Lazarus from Oxford was able to prepare a paper for the review which appears in an appendix setting out the state's positive obligations to victims of violent crime and rape in particular.

My thoughts on obligations to victims were also clarified by my visits to sexual assault referral centres and my meetings with independent sexual violence advisers. The Sexual Assault Referral Centres are practical, efficient, medical places that care for people, take samples, arrange counselling, provide necessary medical attention. At their best everything about them, the thoughtful decoration of the rooms, the clean clothes to put on, says 'respect' and says 'you are important to us'.

SARCs are a very necessary part of a criminal investigation but they are also symbols - symbols of respect for human dignity, symbols of a community that minds when people are assaulted and violated and organises resources and money to help heal that violation.

The independent sexual violence advisers are also immensely practical, doing basic helpful tasks that victims need, from helping them make sense of the police and prosecution processes to organising a change of locks on their door - practical but also symbolic. Symbolic of a supportive community, of our common humanity and our concern.

Maybe there is a challenge here that the crime of rape sharpens and exemplifies for the whole criminal justice system. Sara Payne expressed this well in her report when she said "We need to reconsider our definition of 'justice' so it is not just for punishing a perpetrator and preventing further crimes."

Three weeks ago I was in Nairobi, Kenya as a parliamentary volunteer for Voluntary Service Overseas, placed with an organisation that combats violence against women. We visited the Sexual Violence Recovery Centre at Kenyatta hospital. Ten women of the hundred or so who attend the centre had agreed to come to meet me and tell their stories. It was in confidence but this story I can tell because it is all well documented and known.

A middle-aged woman from the Democratic Republic of the Congo, very personable and articulate, told us that the troops of a warlord arrived in her village. They killed her husband and children in front of her and she was then raped by many of them and left for dead. She survived and fled to Kenya. The Democratic Republic of the Congo is a country where the International Criminal Court is prosecuting for war crimes and crimes against humanity. So the woman from the Congo whom I met has, as a victim, certain rights in that case before that court.

The International Criminal Court is the most modern piece of criminal justice machinery to be set up by the international community and it combines the best and the latest of the world's thinking about crime, justice and victims. At its best (and if it is allowed to work) the International Criminal Court is a criminal justice package that balances the elements that should all be present in any society's response to serious crime. First it says clearly there is no impunity for the perpetrators of serious crimes however powerless or powerful they are. Even the president of a country is not protected from prosecution.

But the processes must be fair and the punishments must be humane. There is no death penalty available to the International Criminal Court, and if someone is to be imprisoned it must be in a prison run according to the United Nations Standard Minimum Rules for the treatment of prisoners. And victims have an important place in the process. They are entitled to be heard. They may participate in court proceedings by expressing their views and they can have their own legal representatives to help them do this. They are entitled to recognition, reparation and long term support to help them recover.

So what might we say about justice for victims? Justice must be accorded equally to the powerful and the powerless, to the blameless and those whose lives have not been faultless. There must be no impunity for perpetrators but justice must be balanced between the processes that lead to conviction and punishment and the mechanisms that meet the obligation to support and heal the victim and provide redress.

So let me conclude by asking 'what can that mean for us today', a day after the comprehensive spending review is published and it is clear that there will be less money and some things will not be done? In the face of these financial constraints we have to say serious violent crime must be the priority and rape is one of the most serious violent crimes. I am sure that as the cuts come there will be a commitment to no reductions in investigating and prosecuting serious crime. That is the duty of any government and it will continue. However if there is to be justice we have to ensure that there is a similar commitment to supporting the victims of that serious crime.

If the Sexual Assault Referral Centres are not rolled out across the country, if the grants for independent sexual violence advisers are not renewed, if rape crisis centres are closing up and down the country, the government will have failed to meet its obligations to a group of people who have been grievously harmed.

I hope that message will be heard by all those in Government making these decisions.